[U] Commonwealth v. Davis

Appeal from the PCRA Order May 16, 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000781-2011

BEFORE: MUNDY, J., OLSON, J., and STABILE, J.

MEMORANDUM

MUNDY, J.

Appellant, Jadi Frederick Davis, appeals from the May 16, 2013 order[1]denying his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Additionally, Appellant's counsel, Anthony Tamborino, Esquire (PCRA counsel), has filed, with this Court, a motion to withdraw as counsel together with a "Turner-Finley Brief, " averring Appellant's issues are without merit.[2] After careful review, we affirm the denial of PCRA relief and grant PCRA counsel's motion to withdraw.

The PCRA court has summarized the factual circumstances of this case, as adduced at Appellant's trial as follows.

On October 16, 2010, at 12:08 am, Officer Joseph J. Bunty, of the Hanover Borough Police Department, was on patrol in his unmarked police vehicle. While traveling northbound on State Route 194, Officer Bunty observed a maroon vehicle traveling the opposite direction, at a high rate of speed. The posted speed limit was 25 miles per hour. Officer Bunty believed that the vehicle was going faster than the posted speed limit. Officer Bunty reversed his direction of travel and caught up to the vehicle, in the area of Mckinley Avenue.

Once behind the vehicle, Officer Bunty observed the car cross the double yellow center line near the Rutter's convenience store. After continuing to follow the car, Officer Bunty witnessed the vehicle cross the double yellow line near Stock Street. On both occasions, the front end of the vehicle clearly entered the opposite lane of travel, without the use of turn signals. Continuing to follow the vehicle, Officer Bunty viewed the car briefly enter a left turn only lane and then move quickly back into the right hand lane. Officer Bunty then activated his lights and sirens in an attempt to initiate a traffic stop.

Officer Bunty testified that the vehicle initially pulled to the side of the road, and then it pulled back onto the roadway and made a right turn on [N]orth Railroad Street. Once on [N]orth Railroad Street, the vehicle pulled to the side of the road and briefly paused, then it continued to the opposite side of the alley, finally coming to a complete stop near the curb. Officer Bunty made contact with the driver who presented an identification card bearing the name Jadi Davis, the Appellant in this matter. After engagement in conversation, Officer Bunty noticed that Appellant had glassy eyes, and slurred speech. Officer Bunty also smelled a strong odor of alcohol emanating from Appellant's person. Officer Bunty also testified that Appellant's clothes were disheveled and his fleece jacket appeared to be inside-out. Officer Bunty asked the Appellant if he had been drinking and he responded that he had. Officer Bunty then asked the Appellant to step out of his vehicle.

As the Appellant exited the vehicle, Officer Bunty observed a clear plastic baggy in the map pocket of the door, which contained a green vegetable matter, consistent with the street drug packaged as marijuana. Officer Bunty then asked Appellant if he would submit to field sobriety testing. Appellant refused to submit to field testing and requested a lawyer. At this time, Officer Bunty placed the Appellant into custody and transported him to the hospital[] in order to test Appellant's blood alcohol content. After being read Section 1547 of the Pennsylvania Vehicle Code, Appellant refused to sign the warning and then refused to submit himself to a chemical blood test.

While escorting the Appellant into the hospital, Officer Bunty witnessed him stumble and state, "l am not that intoxicated". Upon Appellant's release, Officer Bunty observed him stagger and bump into the door frame, as he exited the emergency department.

PCRA Court Opinion, 8/13/13, at 1-3 (internal citations omitted).

Appellant was subsequently charged on October 19, 2010, with driving under the influence of alcohol, possession of a small amount of marijuana, possession of drug paraphernalia, failure to keep right, and driving while operating privilege was suspended (DUI related).[3] The case proceeded to a jury trial held on December 13-15, 2011. At the conclusion of the trial, the jury found Appellant guilty of DUI with a specific finding that Appellant refused blood alcohol testing, and found Appellant not guilty of possession of drug paraphernalia. The trial court found Appellant guilty of possession of a small amount of marijuana, and the summary offenses of failure to keep right, and driving while operating privilege was suspended (DUI related). On February 28, 2012, the trial court sentenced Appellant to an aggregate term of incarceration of 21 months to five years.[4] Appellant filed a facially untimely pro se post-sentence motion for reconsideration of his sentence on March 13, 2012, which the Clerk of Courts docketed and forwarded to Appellant's counsel. See Pa.R.Crim.P. 576(A)(4). No counselled post-sentence motion was submitted and no direct appeal from Appellant's judgment of sentence was filed.

On January 28, 2013, Appellant filed a pro se PCRA petition, and on January 30, 2013, the PCRA court appointed the York County Public Defender's Office to represent Appellant.[5] A hearing on Appellant's PCRA petition was held on April 26, 2013. The PCRA court denied relief by order filed May 16, 2013. Appellant filed a timely notice of appeal on May 28, 2013.[6] Subsequent to filing the appeal, PCRA counsel filed a motion to withdraw as counsel on ...

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